April 2012

By William W. Abbott

Sierra Club v. Napa County Board of Supervisors (2012) 205 Cal.App.4th 162.

In 1991, the California Legislature amended the Subdivision Map Act to restrict the use of boundary line adjustments by limiting their use to four or fewer adjacent parcels. Government Code Section 66412(d). While intended to deal with the reconfiguration of large ranches without going through the subdivision process, the 1991 amendment made the process of making minor technical adjustments between contiguous parcels unnecessarily more cumbersome then what was really necessary. (Essentially, the use of a nail gun to put in a thumbtack.) Local governments and engineers developed different strategies for working around the amendments. One of those was processing multiple sequential adjustments. 

Continue Reading Court Upholds Processing of Sequential Boundary Line Adjustments

In December 2011, we posted an article reviewing the Second Appellate District’s determination in Ballona Wetlands Land Trust v. City of Los Angeles (2011) 201 Cal.App.4th 455.

The petitioner, Ballona Wetlands Land Trust filed a petition for review on January 12, 2012. On February 2, 2012, the Natural Resources Defense Council filed a request for depublication. On March 21, 2012, the California Supreme Court denied both the petition for review and depublication requests [2012 Cal. LEXIS 3142.] resulting in a decisive conflict between the reported cases on Guidelines section 15126.2, subdivision (a) and the text of Section 15126.2, subdivision (a) itself.

For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, or the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

By William W. Abbott

It is refreshing when a court lays it on the line. And, that is exactly what Division Eight of the Second Appellate District did in addressing CEQA’s requirements for baseline selection for projects with future implementation dates. The case, Neighbors for Smart Rail v. Exposition Metro Line Construction (April 17, 2012, B232655) __Cal.App.4th __ (“Neighbors”) provides a counterweight to recent decisions from the Fifth and Sixth Appellate Districts, setting a possible stage for California Supreme Court review.

Continue Reading A Judicial Throwdown on CEQA’s Baseline Requirements

By William W. Abbott

On March 15, 2012, California Department of Fish and Game announced it was suspending work on new proposals for mitigation banks, due to state budgetary constraints. http://www.dfg.ca.gov/habcon/conplan/mitbank/

Despite the state’s own recognition of the benefits of mitigation or conservation banks, that recognition only goes so far. This poses a challenge to agencies and developers operating in areas in which the banks are limited or closing. It may be that acquiring remaining credits will take on a new priority while projects are being re-positioned during the market slump. Another implication is that it may become imperative to challenge a CEQA characterization of habitat loss or impairment given that options for satisfying compensation may be more limited in the future. Here is the state’s list of approved banks as of January, 2012. http://www.dfg.ca.gov/habcon/conplan/mitbank/catalogue/catalogue.html

Continue Reading A Run on the Banks? (Mitigation banks that is.)

By William W. Abbott, Diane Kindermann, Elizabeth Strahlstrom, Katherine J. Hart and Glen Hansen

The first quarter cases largely hone or refine established CEQA concepts. Not surprisingly, two decisions reaffirm that the fair argument test (whether for exemptions or negative declarations) remains a relatively low threshold for an opponent to cross (Berkeley Hillside and Consolidated Irrigation.) The Flanders court clarified that feasibility is based upon a “reasonably prudent” test, not what the applicant can afford. The Fifth Appellate District applied the traditional appellate substantial evidence test to a trial court order augmenting a CEQA record (Consolidated Irrigation District.) Finally, the most interesting case comes from El Dorado which discusses the CEQA transition from a general plan EIR to an implementing action (Center for Sierra Nevada Conservation). Enjoy!

Continue Reading 2012 CEQA 1st QUARTER REVIEW

By William W. Abbott

Fraternity defeats City injunction request by reorganizing as a religious order.

In a surprising turn of events for City officials, the Delta Tau Chi fraternity, the single largest source of noise complaints in the City of Fresno, reorganized itself as a religious order last February. This conversion came about as a result of City officials filing a nuisance complaint and seeking a preliminary injunction. The fraternity quickly reorganized itself as a religious brotherhood, albeit one with unconventional practices. At the hearing on the preliminary injunction, the trial court judge, the Honorable Douglas Neidermeyer, expressed sympathy for the City’s concerns. However, the judge declined the City’s preliminary injunction request, ruling that under the federal Religious Land Use and Institutionalized Persons Act, the City was not likely to succeed on the merits. The judge’s order stated: “The law requires this court to have an open mind as to what constitutes bona fide religious practices. As the defendants have demonstrated in their opposition papers, the wilder side of Lutherans and the Amish, while not well known, are nevertheless well documented. This court cannot discriminate in favor of established more popular religions over those that are not.” Trial is set in August while the students are on summer break.

Continue Reading Local Government Land Use News Update